Clause 33: Consultation about UK Government's legislative programme

154.     This clause requires the Secretary of State for Wales, as soon as is reasonably practicable after the beginning of each Parliamentary session, to consult the Assembly about the UK Government's legislative programme, except to the extent that it appears to the Secretary of State that consultation on a particular bill is inappropriate. As part of such consultation, the Secretary of State must participate in a plenary session of the Assembly at least once in the session. The Secretary of State can participate by actually attending the plenary session, or by video link. Where, after the beginning of the session, it is decided that a bill should be introduced into Parliament and that bill has not been included in the Secretary of State's initial consultation with the Assembly, then the Secretary of State must consult the Assembly about it (unless it appears to the Secretary of State to be inappropriate to do so).

Clause 34: Participation by Counsel General

155.     Clause 49 makes provision about the appointment of the Counsel General to the Welsh Assembly Government. It does not require the Counsel General to be an Assembly member. This clause makes provision about the participation of the Counsel General, if not an Assembly member, in the proceedings of the Assembly, including committees and sub-committees.

156.     The clause also allows the Counsel General to decline to answer questions or produce documents about the operation of the criminal prosecution system in any particular case, if the Counsel General considers that to do so might prejudice criminal proceedings in the case or otherwise be contrary to the public interest.

Clause 35: Equality of treatment

157.     This clause requires the Assembly, in the conduct of its proceedings, to give effect, so far as is both appropriate in the circumstances and is reasonably practicable, to the principle that the English and Welsh languages should be treated on a basis of equality.

158.     It also requires the Assembly to make appropriate arrangements with a view to securing that Assembly proceedings are conducted with due regard to the principle that there should be equality of opportunity for all people.

Clause 36: Integrity

159.     This clause requires standing orders to make various kinds of provision to safeguard standards of integrity in relation to Assembly proceedings, namely:

a)     for Assembly members to be required to register certain interests defined by standing orders in a compulsory public register of Assembly members' interests;

b)     for an Assembly member who has a financial or other interest, as defined in standing orders, in a matter to which Assembly proceedings relate, to declare that interest before taking part in those proceedings;

c)     for preventing or restricting the participation in proceedings of an Assembly member who has an interest (as defined in standing orders) in the matter to which those proceedings relate;

d)     prohibiting Assembly members, from advocating or initiating any cause or matter, or urging another member to do so, in return for a payment or benefit in kind.

160.     A failure to comply with these provisions of standing orders constitutes a criminal offence which can be punished, on summary conviction, with a fine not exceeding level 5 on the standard scale (at present up to £5,000). Consent of the Director of Public Prosecutions is required before a prosecution can be brought.

161.     The provisions of standing orders under this clause are to apply to the Counsel General even if not an Assembly member.

162.     The Assembly will be able to make Assembly Measures under Part 3 of the Bill on matters relating to registration of members' interests.

163.     Subsection (6) requires standing orders to make provision, either directly or by a code or protocol, about the different roles and responsibilities of Assembly constituency and regional members. Assembly regional members are to be prohibited from describing themselves in a way suggests that they are Assembly

164.     constituency members, and vice versa.

Witnesses and documents

Clause 37: Power to call

165.     This clause, together with the associated clauses 38, 39 and 40, provides the Assembly with powers to require witnesses to appear to give evidence before, or to produce documents to the Assembly, its committees or their sub-committees.

166.     The Assembly may, under subsection (1), require any person to attend Assembly proceedings to give evidence, or to produce documents which are in that person's possession or control, concerning any matter relevant to the exercise by the Welsh Ministers of any of their functions and provided the person in question is involved in the exercise of functions or the carrying on of activities in relation to Wales. It is anticipated that persons will almost always attend or produce documents to the Assembly voluntarily, and that this power will only need to be used very rarely.

167.     "Assembly proceedings" includes any proceedings of the Assembly, its committees, or sub-committees.

168.     "Document" is defined by clause 40(6) as anything in which information is recorded in any form. It would therefore include, e.g., a video recording, a computer hard drive, a floppy disk, or CD-Rom. Clause 40(6) also provides that a person is taken to comply with a requirement to produce a document on production of a copy of, or an extract of the relevant part of, the document. The information recorded in the document must be produced in a visible and legible form.

169.     "Person" is intended to have the same meaning as in the Interpretation Act 1978, i.e. it applies to public bodies and officers, as well as to private bodies such as companies, trusts etc.

170.     The Assembly cannot impose a requirement under subsection (1) on a current or former Minister of the Crown, or on anyone serving, or who has served, in a Minister of the Crown's department, in relation to the exercise of the functions of a Minister of the Crown.

171.     Under subsection (4) current full-time judges are immune from being required to give evidence or produce a document under subsection (1). Other current and former members of courts (e.g. lay magistrates and Recorders), and current or former members of tribunals, are immune only in relation to the exercise of their functions as such.

172.     Subsections (5) and (6) make special provision in relation to persons who are current or former members of staff of the Welsh Assembly Government, or are current or former secondees. Where such a person is required to give evidence or produce documents under subsection (1), then any of the Welsh Ministers, the First Minister or the Counsel General can issue a direction that the person summoned need not comply, and that a specified replacement is to comply instead. This means that it is for the Welsh Ministers to decide which of their staff should appear before the Assembly or its committees. Welsh Ministers will ultimately be answerable to the Assembly for their decisions to direct that a different member of staff from the one identified by the Assembly is to appear.

173.     The power under subsection (1) may be exercised by the Audit Committee or, with the authority of the Assembly, by any other committee or sub-committee.

174.     No-one is obliged by this clause to answer any question or produce any document which they would be entitled to refuse to answer or produce in court proceedings in England and Wales, for example under the privilege against self-incrimination or on grounds of legal privilege.

175.     Subsection (9) entitles prosecutors to decline to answer questions or produce documents about particular criminal prosecutions if authorised by the appropriate officer on the grounds that to do so might prejudice criminal proceedings in that case, or would be contrary to the public interest. The appropriate officer for the purpose of subsection (9) is the Counsel General in cases where the criminal proceedings were instituted by or on behalf of the Welsh Ministers, the First Minister or the Counsel General and in all other cases is the Attorney General.

Clause 38: Notice

176.     This section sets out the procedure by which the Assembly exercises its power under clause 37(1) to require persons to attend and give evidence at proceedings, or produce documents.

177.     Subsections (1) and (2) require the Clerk of the Assembly to give written notice to those who are made subject to a requirement under clause 37(1), specifying the following matters:

a)     in all cases, whether they are being required to attend to give evidence or produce documents to the Assembly itself, or to a specified committee or sub-committee;

b)     in cases of witnesses required to give evidence, the time and place at which they must attend, and the subjects about which they are required to give evidence;

c)     in cases of people required to produce documents, the documents which they need to produce, the deadline for producing them, the person to whom they are to produce them and the subject concerning which the documents are required.

178.     Notice is to be sent by registered or recorded delivery post. In the case of an individual, it is to be sent to that person's usual or last known address or to an address for service, where one has been given. In any other case (e.g. a limited company, a health board or another public body) the notice is to be sent to the person's registered or principal office.

179.     Subsection (5) provides that where the Welsh Ministers, the First Minister, or the Counsel General issue a direction under clause 37(6) that a particular person is not to attend or produce documents in response to a requirement under clause 37(1), then the person issuing the direction must give notice of having done so. Where the requirement to give evidence or produce documents was imposed for the purposes of the Assembly, notice of a direction under clause 37(6) must be given to the Presiding Officer. In other cases, notice of the direction must be given to the chair of the committee or sub-committee for the purposes of which the requirement was imposed.

Clause 39: Offences

180.     Subsection (1) of this clause makes it a criminal offence for a person to whom a notice under clause 38(1) has been given to:

a)     refuse, or fail, without reasonable excuse, to attend proceedings as required by the notice;

b)     refuse, or fail, without reasonable excuse, to answer any question concerning the subjects specified in the notice;

c)     refuse, or fail, without reasonable excuse, to produce a document which the notice required to be produced; or

d)     intentionally alter, suppress, conceal or destroy any such document.

181.     Subsection (1) is subject to the various grounds on which a person may decline to answer a question or produce a document (clauses 34(3) and 37(5), (6), (8) and (9)).

182.     If a person charged with an offence under subsection (1)(a), (b) or (c) can adduce evidence of a reasonable excuse for the refusal or failure, then it is for the prosecution to prove that the person did not have such an excuse.

183.     The penalty in the case of a person found guilty of an offence under subsection (1) is a fine not exceeding level 5 on the standard scale (currently £5,000) or of imprisonment for up to 51 weeks, or both. (Under transitional provisions in paragraph 19 of Schedule 11 the maximum term of imprisonment will be three months until section 281(5) of the Criminal Justice Act 2003 is brought into force.) Offences are triable summarily.

184.     Certain senior officers of a body corporate (e.g. a company) are personally liable (in addition to the body corporate itself) to prosecution where they have consented to or connived at the commission of an offence or the offence is attributable to their neglect.

Clause 40: General

185.     Under this clause the Presiding Officer, or any other person authorised by standing orders, may require anyone giving evidence in Assembly proceedings to take an oath (or make an affirmation), and to administer such an oath or affirmation. This clause applies both to a person who has been required to attend and to a person who attends by invitation.

186.     Subsection (2) creates an offence where a person who has been required by notice under clause 38(1) to attend to give evidence in Assembly proceedings refuses to take the oath or make an affirmation when required to do so. Anyone found guilty of such an offence will be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale (currently £5,000) or up to 51 weeks' imprisonment (again, subject to a transitional provision limiting the term to three months until section 281(5) of the Criminal Justice Act 2003 comes into force) or both.

187.     Standing orders may provide for the payment of expenses and allowances to people who attend to give evidence to, or produce documents to, the Assembly, its committees and their sub-committees, whether or not they were required to do so by a notice under section 38(1). Standing orders can confer functions in relation to these matters on the Assembly Commission.

Legal issues

Clause 41: Proceedings by or against Assembly etc.

188.     This clause makes provision in relation to legal proceedings by and against the Assembly.

189.     Where proceedings are brought by or against the Assembly these are to be instituted by or against the Assembly Commission. Proceedings by or against the Presiding Officer, the Deputy Presiding Officer or any member of the staff of the Assembly are to be brought by or against the Assembly Commission on their behalf.

190.     Where proceedings are brought against the Assembly the court may not grant a mandatory, prohibiting or quashing order or an injunction or make an order for specific performance. It may instead make a declaration.

191.     A similar restriction applies to such remedies in legal proceedings against any Assembly member, the Presiding Officer or Deputy Presiding Officers, members of the staff of the Assembly or the Assembly Commission, if the effect of granting such a remedy would be to give relief against the Assembly which could not be given against the Assembly itself. This is intended to prevent the protection for the Assembly being circumvented by taking action instead against individual members or office-holders. The approach is similar to that taken in section 21(2) of the Crown Proceedings Act 1947.

192.     The protection would not extend to proceedings taken against Assembly members arising for example out of their constituency work, since remedies granted in such proceedings would not be equivalent to remedies granted against the Assembly itself.

193.     The effect of the equivalent provision in Scotland (section 40(4) of the Scotland Act 1998) was considered by the Scottish Court of Session in Whaley v Lord Watson of Invergowrie 2000 SLT 475 where it was held that it did not prevent an interdict (equivalent to an injunction) being granted against a MSP from introducing a Bill on the grounds that he would thereby be breaching some provision of the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (SI 1999/1350). As the Lord President stated at page 482:

".. the subsection does not bar a remedy against a member simply because it may have some consequential effects on the working of the Parliament: the bar applies only where the interdict against the member would have the effect of granting relief, i.e. a legal remedy, against the Parliament."

194.     Subsection (5) provides that the prohibition on certain remedies is not limited to final orders. So, for example, it would prohibit the granting of an interim injunction against the Assembly (or the Assembly Commission, in so far as it is acting on the Assembly's behalf).

Clause 42: Defamation

195.     This clause replicates the provisions in section 41 of the Scotland Act 1998, rather than the more detailed provisions in section 77 of the Government of Wales Act 1998, which reflected the fact that the Assembly as a unitary corporate body had both legislative and executive functions. The protection afforded to the newly constituted Assembly by this clause is intended to be the same as that afforded to the legislative and scrutinising arm of the current Assembly by the 1998 Act.

196.     This clause confers absolute privilege for the purposes of the law of defamation on any statement made in Assembly proceedings and on the publication of any statement under the authority of the Assembly.

197.     The provision is intended to ensure that Assembly members are free to debate and the Assembly is free to report on matters of public interest without fear of an action for defamation being raised.

198.     The privilege of freedom of speech is part of the law and custom of the UK Parliament. It is also reflected in Article 9 of the Bill of Rights 1688-9 which confers on "proceedings in Parliament" protection from being "impeached or questioned" in any court. No similar general privilege is conferred upon proceedings in the Assembly. However, this clause and clause 43 protect statements made in such proceedings and their publication against proceedings for defamation and contempt of court.

199.     The Bill contains other provisions which make provision in relation to defamation.

200.     The amendments made to the Defamation Act 1952 and the Defamation Act (Northern Ireland) 1955 by paragraphs 5 and 6 of Schedule 10 limit privilege in relation to defamation at elections of Assembly members.

201.     Paragraph 40 of Schedule 10 amends paragraph 11(1)(c) of Schedule 1 to the Defamation Act 1996 to provide that the reports and statements of any commission, tribunal, committee or person appointed for the purposes of any inquiry by a Welsh Ministers or by the Counsel General attract qualified privilege subject to explanation or contradiction.

202.     Paragraph 19 of Schedule 10 amends section 26(1) of the Public Order Act 1986 to protect reports of Assembly proceedings against offence under Part 3 of the 1986 Act relating to racial hatred.

Clause 43: Contempt of court

203.     Assembly proceedings, unlike those of the UK Parliament, are subject to the law of contempt of court. No express provision is needed to make them so, because the law of contempt of court and particularly the strict liability rule in the Contempt of Court Act 1981 will apply automatically unless expressly disapplied.

204.     This clause disapplies the rule of strict liability for contempt of court in relation to publications made in or for the purposes of Assembly proceedings, or in certain reports of Assembly proceedings.

205.     The strict liability rule is defined by section 1 of the Contempt of Court Act 1981 as that whereby conduct may be treated as a contempt of court regardless of intent to interfere with the course of justice in particular legal proceedings. In terms of section 2 of that Act the rule only applies to a publication which creates a substantial risk that the course of justice in active legal proceedings will be seriously impeded or prejudiced. Section 5 of the Act provides that the rule does not apply to publications made during a discussion in good faith of public affairs if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.

206.     This clause is intended to ensure that the Assembly is not prevented from legislating on any matter merely because anything said or done in proceedings to consider an Assembly Measure, an Assembly Bill or subordinate legislation might be treated as a contempt of court under the "strict liability rule". However, unlike section 42 of the Scotland Act 1998, the protection afforded by this clause applies not just to proceedings relating to legislation, but to all proceedings of the Assembly, as currently does section 78 of the Government of Wales Act 1998. Clause 31(2) requires standing orders to include provision "for preventing conduct which would constitute .. a contempt of court" and a sub judice rule.

Clause 44: Corrupt practice

207.     The effect of the clause is to make members and staff of both the Assembly and the Assembly Commission subject to liability for criminal offences under the Prevention of Corruption Acts 1889 to 1916. It does so by making both the Assembly and the Assembly Commission (by whom staff of the Assembly are employed) public bodies for the purposes of those Acts.

208.     The Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916 are known together as the Prevention of Corruption Acts 1889 to 1916. The Acts create certain offences related to bribery and corruption of and by members, officers or servants of local authorities, government departments and other public bodies in connection with those bodies' business.

209.     The Welsh Ministers, Deputy Welsh Ministers, the Counsel General and their staff will also be covered by the Prevention of Corruption Acts 1889 to 1916 to the extent that other Ministers of the Crown and Crown servants are covered.

PART 2: WELSH ASSEMBLY GOVERNMENT

Overview of Part 2

210.     Part 2 of the Bill makes provision establishing the Welsh Assembly Government as a distinct entity in its own right, authorises Ministers to exercise statutory powers and places certain statutory duties on them. Ministers will discharge their responsibilities on behalf of the Crown.

Ministers etc

211.     Clauses 45-51 set out in detail the membership and appointment procedures of the Welsh Assembly Government. The members are the First Minister, who is appointed by Her Majesty on the nomination of the Assembly; the (other) Welsh Ministers and Deputy Ministers, who are appointed by the First Minister with Her Majesty's approval; and the Counsel General, who is appointed by Her Majesty on the recommendation of the First Minister, with the agreement of the Assembly. Ministers and Deputy Ministers (of whom together there may not be more than twelve) may be removed from office by the First Minister (or may resign) at any time. The First Minister may with the agreement of the Assembly recommend to Her Majesty at any time the removal of the Counsel General; the Counsel General may tender resignation to Her Majesty at any time. Clauses 53-55 provide procedures for determining all these office-holders' remuneration, and for their taking an oath (or making an affirmation) on assuming office.

212.     The Bill makes detailed provision to cover circumstances:

a)     following a vote of no confidence in the Welsh Ministers (the First Minister remains in office until a successor is appointed, which must happen within the specified period of 28 days, but the other Welsh Ministers and Deputy Ministers are required to resign forthwith; the Counsel General remains in office until a new First Minister is nominated); or

b)     where the First Minister's office becomes vacant, the First Minister becomes unable to act or has ceased to be an Assembly Member (the Presiding Officer, acting on the recommendation of the other Welsh Ministers, designates another Assembly Member to exercise the functions of the office).

213.     The Assembly Government will be supported by staff who (unlike the staff supporting the National Assembly itself) are civil servants (clause 52).

Exercise of Functions

214.     Under the Bill, Ministers will exercise functions in their own right, rather than as delegates of the Assembly, and statutory functions will in future be expressed to be exercisable by the "Welsh Ministers", rather than conferred on the Assembly and then delegated. Any function conferred on the "Welsh Ministers" will be exercisable by the First Minister or any of the other Welsh Ministers individually (but not generally by the Counsel General, who will not have "portfolio" responsibilities); they will be assisted in the discharge of their responsibilities by the Deputy Ministers. Paragraphs 28-38 of Schedule 11 make detailed provision transferring the Assembly's existing (executive) set of functions, together with the associated property, rights and liabilities, to the Welsh Ministers, although Orders in Council may make alternative provision, for example transferring specific functions to the First Minister, the Counsel General, or the Assembly Commission, or leaving the function (particularly if it is of a predominantly legislative character) with the Assembly. Once the new arrangements are in place following the May 2007 elections, Welsh Ministers may acquire further powers:

a)     by specific provision in future Acts of Parliament;

b)     by Transfer of Functions Orders (clause 58 and Schedule 3 to the Bill effectively re-enact s.22 and Schedule 3 of the 1998 Act, under which Transfer of Functions Orders have been made hitherto, and clause 87 and Schedule 4 transfer the associated property, rights and liabilities attached to any such transferred function);

c)     by designation under s.2 of the European Communities Act, in order to implement requirements of European law; or

d)     by specific provision in future Assembly Measures.

215.     Clauses 60-65, 69, 70-71 and 82 and 83 provide additional or supplementary powers enabling the Welsh Ministers to discharge their functions effectively. Most of these provisions derive from similar provisions in the 1998 Act, with the exception of clause 60. Clause 60 empowers the Welsh Ministers to do anything which they consider is likely to achieve the promotion or improvement of the economic, social or environmental well-being of Wales. This does not reflect any specific provision of the 1998 Act although local authorities have similar powers under section 2 of the Local Government Act 2000 as does the Greater London Authority (in a slightly different form) under section 30 of the Greater London Authority Act 1999.